The Celestial Jam Session: Creative Sharing Online Caught in Conflicts of Copyright Laws
European Intellectual Property Review (EIPR), vol. 37 (2015), pp. 490-497
8 Pages Posted: 17 Dec 2015 Last revised: 3 Jan 2020
Date Written: December 15, 2015
Abstract
Suppose an intranet within which collaborators creatively recast a copyright work across diverse countries without consent. In unpacking this hypothetical, this article analyzes approaches to conflicts of copyright laws relative both to online and to cross-border infringement. In the case in question, copyright laws risk entering into tensions with creative collaborators’ fundamental rights, notably privacy and freedom of expression. To defuse such tensions while accommodating public policies, a court may decline to enjoin the more or less private networking of claimant’s work under any arguably applicable law. Nonetheless, the court may award damages or profit shares by applying copyright laws country by country to markets that infringement impacts in crossing borders. However, in a case like that posited here, such an award may not prove worth seeking for any market in which such impacts are negligible. In any event, an award granted in one jurisdiction may be disallowed in another if it is there found disproportionately excessive.
Keywords: Copyright, intranets, creative collaboration, cross-border infringement, private international law, conflicts of laws, ordre public, fundamental rights, privacy, free expression, remedies
JEL Classification: K10, K11, K33, L82, O34
Suggested Citation: Suggested Citation